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filed: August 27, 1982.


No. 1645 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, at No. 3181 December Term, 1980.


Lee A. Solomon, Philadelphia, for appellant.

Susan Warnock, Philadelphia, for appellees.

Wieand, Beck and Hoffman, JJ.

Author: Hoffman

[ 303 Pa. Super. Page 560]

Appellant contends that the lower court erred in dismissing her complaint with prejudice. We disagree and, accordingly, affirm the order of the court below.

In May 1976, appellant's husband, William Pashak,*fn1 was injured while working as a longshoreman. In September of that year, he sued the ship's owner in federal court alleging that the ship was unseaworthy and that the shipowner had been negligent. Shortly thereafter, Mr. Pashak retained appellees as his attorneys to prosecute the federal action. In 1979, appellees recommended, and Mr. Pashak agreed, to settle the case for $100,000. Mr. Pashak executed a release and subsequently received the settlement proceeds net of appellees' fees. Later, he was notified that, contrary to appellees' advice, his statutory compensation benefits would

[ 303 Pa. Super. Page 561]

    be terminated due to the settlement. Appellant also learned that she might be precluded from recovering any such benefits as a consequence of her husband's settlement. In December 1980, appellant commenced this action in assumpsit and trespass alleging that through appellees' malpractice she "has been precluded from ever receiving any [statutory] compensation benefits." Appellees filed preliminary objections alleging, inter alia, that appellant's loss was too conjectural and remote to warrant recovery in a malpractice action. The lower court agreed with appellees and dismissed appellant's complaint with prejudice. This appeal followed.

Appellant contends that the lower court erred in concluding that her loss was too conjectural and remote to warrant recovery in a legal malpractice action. "[W]hen it is alleged that an attorney has breached his professional obligations to his client, an essential element of the cause of action, whether the action be denominated in assumpsit or trespass, is proof of actual loss." Duke & Co. v. Anderson, 275 Pa. Superior Ct. 65, 73, 418 A.2d 613, 617 (1980) (assumpsit). Cf. Schenkel v. Monheit, 266 Pa. Superior Ct. 396, 405 A.2d 493 (1979) (trespass). To maintain a cause of action, a third party to the attorney-client relationship must likewise prove he has suffered actual damages as a result of the attorney's malpractice. See Guy v. Liederbach, 279 Pa. Superior Ct. 543, 547, 421 A.2d 333, 336 (1980) (applying Schenkel to beneficiary's action for negligent execution of will) (petition for allowance of appeal granted November 15, 1980). "'The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm -- not yet realized -- does not suffice to create a cause of action for [malpractice].'" Schenkel v. Monheit, supra, 266 Pa. Superior Ct. at 399, 405 A.2d at 494, quoting Budd v. Nixen, 6 Cal.3d 195, 200, 491 P.2d 433, 436-37, 98 Cal.Rptr. 849, 852 (1971).

It is generally accepted that an attorney is not liable for any damages which are remote or speculative. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable

[ 303 Pa. Super. Page 562]

    damages. The mere possibility or even probability that the plaintiff will sustain an injury at some future time does not alter the speculative nature of the damage claim or support a cause of action for legal malpractice.

Thus, damages are speculative only if the uncertainty concerns the fact of damages rather than the amount.

R. Mallen & V. Levitt, Legal Malpractice § 302 (2d ed. 1981) (emphasis added and footnotes omitted). Accord, D. Meiselman, Attorney Malpractice: Law and Procedure § 4:1 (1980).*fn2 The lower court reasoned that appellant's loss was too conjectural and remote because her rights would not vest until her husband's death and were conditional upon her surviving him. We agree. Sections eight and nine of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 908(d), 909, provide certain post mortem disability and death benefits to the survivors of injured longshoremen.

The only difference of present importance between the death benefits provided for in sections 8 and 9 is that the former are for the benefit of the survivors of one who suffered from permanent partial disability while the latter are for the survivors of one who suffered from permanent total disability. . . . In either situation, death benefits are recoverable by a unique class of claimants, namely survivors, and are payable, if at all, only in the event of death, an event distinct from the original injury.

[ 303 Pa. Super. Page 563]

St. Louis Shipbuilding & Steel Co. v. Casteel, 583 F.2d 876, 877-78 (8th Cir. 1978) (emphasis in original). "'When death occurs, a new cause of action arises which requires an adjudication on all questions such as accident, notice of death, claim, causal relationship and dependency.'" Puig v. Standard Dredging Corp. 599 F.2d 467, 469 (1st Cir. 1979) (citations omitted). "It could not be known, until the death[ ] occurred, whether there would be any available survivors(s) or, if so, who those survivor(s) would be." Todd Shipyards Corp. v. Witthuhn, 596 F.2d 899, 902 (9th Cir. 1979). Appellant would be entitled to benefits under the Act only if she were his surviving widow -- requiring "a conjugal nexus between the claimant and the decedent subsisting at the time of the latter's death." Thompson v. Lawson, 347 U.S. 334, 336-37, 74 S.Ct. 555, 557, 98 L.Ed. 733, 738 (1954). See generally 33 U.S.C.A. § 902(16). Moreover, the amount of her recovery would depend upon whether they would have any surviving children. See id. §§ 908(d), 909. Under these circumstances, it is readily apparent that appellant has not alleged, and could not amend her complaint to allege, the requisite harm to sustain her cause of action. Accordingly, the lower court properly sustained the preliminary objections and dismissed the complaint. See Behrend v. Yellow Cab Co., 441 Pa. 105, 110, 271 A.2d 241, 243 (1970) ("when the initial pleading indicates that the claim asserted cannot be established," the principle permitting liberal amendment does not apply).*fn3


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